§ 14-102. Purpose.

The purpose of this article is:

(1)

To establish a competitively neutral policy for the use of public rights-of-way for communications facilities:

(2)

To protect the city's investment in the public right-of-way by providing for the payment of nondiscriminatory fees for the use of the right-of-way by communications companies.

(3)

To regulate the placement and maintenance of structures and facilities in the public rights-of-way pursuant to F.S. § 337.401; and

(4)

To adopt and to administer reasonable rules and regulations not inconsistent with state and federal law, including the United States and Florida Constitutions, F.S. § 337.401, as it may be amended, the city's home-rule authority, and in accordance with the provisions of the Federal Telecommunications Act of 1996, the Spectrum Act, FCC regulations, and other federal and state law; to establish reasonable rules and regulations necessary to manage the placement and maintenance of communications facilities in the public rights-of-way by all communications services providers after the effective date of this section; and to minimize disruption to the public rights-of-way.

(5)

Applicability.

a.

Persons seeking to place or maintain communications facilities on private property or other property to which the city, any municipality, Volusia County, Volusia County School Board, State of Florida, or federal government has a fee simple or leasehold interest in real property, not within and exclusive of the public rights-of-way, located within the jurisdictional boundaries of the city shall comply with the applicable provisions of the City Consolidated Land Development Regulations, Article V, Section 5.9, Telecommunications Antennas and Towers, to the extent it applies, unless such property is addressed expressly in this article. This article is not applicable to communication facilities outside the public rights-of-way. Pursuant to this article, a person may be authorized to place or to maintain small wireless facilities, micro wireless facilities, or utility poles for collocation of small wireless facilities in the city public rights-of-way. Wireless support structures, telecommunications towers and other wireless facilities, including but not limited to an antenna that is not part of a small wireless facility or micro wireless facility, shall not be allowed to be placed or maintained in the public rights-of-way, to the extent not inconsistent with applicable law. This article applies to the placement of conduit, fiber or cable for the purpose of providing backhaul or communications service: Consistent with F.S. § 337.401, this article applies to a cable or video service provider that has been issued and holds, a certificate of franchise authority from the Florida Department of State pursuant to F.S. ch. 610, that places or maintains a cable system or wireline facilities in the city's public rights-of-way. This article shall not apply to wireless or communications facilities owned by the city, and shall not apply to communications or wireless facilities owned by a person, including an electric cooperative, to the extent such facilities are utilized on an internal, non-commercial basis by said person.

b.

This article implements inter alia, the Advanced Wireless Infrastructure Deployment Act, F.S. § 337.401(7) ("Wireless Act"). By adopting this article, the city does not waive any rights with respect to the Wireless Act including any rights that may exist under federal law, the Florida Constitution and the U.S. Constitution. In the event the Wireless Act, F.S. § 337.401(7), is repealed, amended, or overturned by a court of competent jurisdiction, or preempted by applicable federal law or regulation, in whole or in part, provisions of this article may no longer apply, in which case pending and future applications for small wireless facilities or utility poles intended to support the collocation of small wireless facilities in the public rights-of-way, will be governed by applicable law. In addition, permits issued pursuant to this article may be suspended or revoked, and facilities installed pursuant to this article or the Wireless Act may be required to be removed at the facility owner's expense, to the extent consistent with applicable law. It is the city's intent not to create any vested rights in placing and maintaining facilities addressed in the Wireless Act in the public rights-of-way as a result of this article or any permit issued pursuant to this article, to the extent not inconsistent with applicable law.

c.

To the extent any provision of this article conflicts with this Code or the Consolidated Land Development Regulations of the city, this article shall control.

d.

This article shall be applicable to all communications facilities placed in the public rights-of-way on or after the effective date of this article, all pending applications for permits subject to this article, and shall apply to all existing communications facilities placed in the public rights-of-way prior to the effective date of this article, to the full extent permitted by state and federal law. A person with existing communications facilities in the public rights-of-way shall comply with this article by the earlier of the following: ninety (90) days from the effective date of the ordinance from which this article is derived or prior to the issuance of a permit pursuant to this article. This provision shall not require removal or modification of communications facilities placed or maintained in the public rights-of-way pursuant to a previously issued permit prior to the effective date of the ordinance from which this article is derived unless such facilities are abandoned or otherwise required to be altered or removed.

e.

Reservation of rights. The city reserves the right to amend this article as it shall find necessary in the lawful exercise of its police powers.

(6)

Authority to implement article. The city manager is authorized to adopt, to modify, and to repeal rules and regulations to carry out the intent and purposes of this article.

(Ord. No. 18-15 , § 2, 11-13-18)